ANTHONY DICARLANTONIO, PETITIONER V. UNITED STATES OF AMERICA
JOHN PRAYSO, PETITIONER V. UNITED STATES OF AMERICA
No. 89-171, No. 89-5641
In the Supreme Court of the United States
October Term, 1989
On Petitions for a Writ of Certiorari to the United States Court of
Appeals for the Sixth Circuit
Brief for the United States in Opposition
TABLE OF CONTENTS
Questions Presented
Opinion below
Jurisdiction
Statement
Argument
Conclusion
OPINION BELOW
The opinion of the court of appeals (Pet. App. A1-A10) is reported
at 870 F.2d 1058. /1/
JURISDICTION
The judgment of the court of appeals (Pet. App. A11) was entered on
March 17, 1989. A petition for rehearing was denied on June 1, 1989
(Pet. App. A12). The petition for a writ of certiorari in No. 89-171
was filed on July 31, 1989. The petition for a writ of certiorari in
No. 89-5641 was not filed until September 21, 1989, and is out of time
under Rule 20.1 of the Rules of this Court. The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).
QUESTIONS PRESENTED
1. Whether proof that money paid to petitioners was furnished by
the FBI constructively amended the charge of conspiracy to violate the
Hobbs Act, 18 U.S.C. 1951.
2. Whether the admission of petitioner Prayso's post-arrest
statements was harmless error with regard to petitioner DiCarlantonio.
3. Whether petitioners were entitled to be sentenced under the
current sentencing guidelines even though their offenses occurred
before the effective date of the guidelines.
STATEMENT
Following a jury trial in the United States District Court for the
Southern District of Ohio, petitioners were convicted of conspiracy to
obstruct interstate commerce by extortion (Count 1), and the
substantive offense of extortion (Count 2), both in violation of the
Hobbs Act, 18 U.S.C. 1951. Both petitioners were sentenced to
concurrent terms of 15 years' imprisonment. The court of appeals
affirmed petitioners' conspiracy convictions but reversed their
convictions on the substantive count.
1. The pertinent facts are summarized in the opinion of the court
of appeals. Pet. App. A1-A3. In May 1986, Otto Jack, an attorney in
Steubenville, Ohio, consulted petitioner DiCarlantonio, who was then
the Steubenville city attorney, about a local fire ordinance and the
placement of propane gas tanks within city limits. Jack represented
Jody Glaub of Atlas Gas Company, a propane gas distributor.
DiCarlantonio advised Jack that he would discuss the matter with
petitioner Prayso, the local fire chief who previously had caused the
removal of propane tanks belonging to Atlas Gas. Id. at A1-A2.
On May 12, Jack telephoned DiCarlantonio to inquire whether any
progress had been made. DiCarlantonio suggested that Jack give money
to Prayso. Although Jack resisted the idea, arrangements were made
for Jack to meet with petitioners at DiCarlantonio's office the next
day. At the May 13 meeting, petitioner Prayso spoke of the large
profit to be made and shared through kickbacks from suppliers of
propane; Jack protested that such an arrangement would be illegal.
Another meeting was scheduled for the next day. Pet. App. A2.
Between the May 13 meeting and the May 14 meeting, Jack and Glaub
notified the FBI and agreed to assist an FBI investigation. At the
May 14 meeting Jack and Glaub agreed that Glaub would calculate the
profits he could expect as a result of a change in the ordinance, and
that petitioners would receive shares of the anticipated profits. On
May 20, petitioners agreed to a $30,000 fee for working to change the
ordinance. Immediately after the meeting, petitioners began lobbying
local officials in an effort to persuade them to change the ordinance.
Pet. App. A2.
Glaub received $30,000 in cash from the FBI with which to make the
payment, and on May 28 he delivered the money to petitioners. Prayso
was arrested the same day, and $15,000 in cash was found in his socks.
DiCarlantonio was also arrested, with a briefcase in his possession.
When the FBI agents questioned him about the briefcase, DiCarlantonio
claimed that he had no key to open it. Upon being told that the
briefcase had a combination lock, DiCarlantonio stated that the
combination was 1-3-3, but he warned that the lock would stick. When
the FBI agents opened the briefcase in DiCarlantonio's presence, they
found $15,000 in cash inside. DiCarlantonio then exclaimed, "Oh, how
did that get there?". Pet. App. A2-A3.
2. Following their first trial, petitioners were convicted on
extortion charges, but their convictions were reversed. United States
v. DiCarlantonio, 830 F.2d 194 (6th Cir. 1987) (Table). Before the
second trial, DiCarlantonio sought a severance on the ground that the
government intended to introduce Prayso's post-arrest statements and
that the statements incriminated him. In response, the government
agreed to redact the post-arrest statements. The court denied a
severance, but it directed counsel to request a bench conference
before testimony regarding Prayso's statements was introduced to
ensure that the necessary redactions were made. Pet. App. A17-A18.
At trial, two FBI agents testified about Prayso's post-arrest
statements. Gov't C.A. Br. 26-31. In the government's rebuttal case,
an FBI agent testified that the $30,000 was furnished by the FBI and
that the FBI was an interstate operation. Id. at 21.
3. The court of appeals reversed petitioners' substantive Hobbs Act
convictions, but affirmed their conspiracy convictions. The court
reversed the substantive convictions on the ground that the use of FBI
funds was inadequate to establish an effect on interstate commerce, as
required by the Hobbs Act, and that the government had failed to prove
that the extortion had an effect on the flow of propane gas in
interstate commerce. Pet. App. A3-A5. The court sustained the
conspiracy convictions, however, because "a conspiracy charge requires
the government to prove only that the defendants' scheme would have
affected commerce." Id. at A6. The court further found that "a
reasonable jury clearly could have found that (petitioners) had
conspired to extort money from Glaub and Atlas Gas, and that, if
successful, this scheme would have affected commerce by depleting the
assets of an enterprise in interstate commerce." Id. at A7.
The court also rejected DiCarlantonio's contention that the
admission of Prayso's statements required reversal under the
principles of Bruton v. United States, 391 U.S. 123 (1968). Although
concluding that the redaction did not appear to satisfy the standards
established by this Court in Richardson v. Marsh, 481 U.S. 200 (1987),
the court held that reversal was not required because petitioner's
counsel had failed to challenge the redaction and because "in light of
the strength of the evidence of (DiCarlantonio's) guilt, any error was
harmless." Pet. App. A7-A8.
ARGUMENT
1. Petitioners contend (89-171 Pet. 4-7; 89-5641 Pet. 4-7) that
the government amended the conspiracy charge by adducing evidence that
provided the jury with a new theory of how interstate commerce was
affected. An indictment is constructively amended when the court
permits a new basis for conviction other than that which appears in
the indictment. United States v. Miller, 471 U.S. 130, 138 (1985);
Stirone v. United States, 361 U.S. 212, 215-216 (1960). According to
petitioners, the government constructively amended the indictment by
eliciting testimony, in its rebuttal case, that the FBI was an
interstate operation and that the payment of $30,000 in FBI funds to
petitioners depleted or diminished the funds available to the FBI for
a period of time.
As the court of appeals noted (Pet. App. A6), proof of an actual
effect upon interstate commerce is an element of a substantive Hobbs
Act violation, but not of a Hobbs Act conspiracy. See United States
v. Jannotti, 673 F.2d 578, 590-594 (3d Cir.) (en banc), cert. denied,
457 U.S. 1106 (1982). The gravamen of the Hobbs Act conspiracy is an
agreement that "would have affected commerce," not an actual effect on
commerce itself. Pet. App. A6. The testimony about the fact that the
funds were actually FBI funds (and that the FBI was an interstate
operation) did not relate to the agreement between petitioners charged
in Count 1. Id. at A13-A16. There was no suggestion at trial that
petitioners knew that the funds were FBI funds, or that their illegal
agreement encompassed a plan to obtain FBI assets. Although the
source of the funds was material to the substantive count, /2/ it was
the contemplated source of funds from petitioners' perspective that
was pertinent to the conspiracy charge. Proof about the eventual
source of the funds, which was different from that envisioned by the
conspirators, thus did not amend the indictment with respect to the
conspiracy charge. /3/
2. Petitioner DiCarlantonio claims (89-171 Pet. 7-13) that the
introduction of petitioner Prayso's post-arrest statements, through
the testimony of FBI agents, violated his rights under the
Confrontation Clause of the Sixth Amendment, as set forth in Bruton v.
United States, 391 U.S. 123 (1968), and Cruz v. New York, 481 U.S. 186
(1987). That violation, he contends, requires that his conviction be
reversed. The court of appeals found merit in the Confrontation
Clause argument, Pet. App. A7-A8, but it concluded that reversal was
not required because DiCarlantonio did not challenge the introduction
of the testimony at trial and because any violation was harmless. Id.
at A8.
The court of appeals was correct in upholding DiCarlantonio's
conviction. DiCarlantonio did not object to the pertinent portions of
the FBI agents' testimony at trial. He did not object to the redacted
statements before their introduction, as the district court's order
contemplated, Pet. App. A8, and with respect to the most explicit
reference to DiCarlantonio (see 89-171 Pet. 8), his counsel
specifically stated that the proposed testimony was not improper. See
Gov't C.A. Br. 27. /4/
In the absence of a contemporaneous objection, a party must
establish "plain error." Fed. R. Crim. P. 52(b). "(T)he plain error
exception to the contemporaneous-objection rule is to be 'used
sparingly, solely in those circumstances in which a miscarriage of
justice would otherwise result.'" United States v. Young, 470 U.S. 1,
15 (1985) (quoting United States v. Frady, 456 U.S. 152, 163 n.14
(1982)). /5/ The admission of the FBI agents' testimony did not
result in a miscarriage of justice. As the court of appeals
determined, "in light of the strength of the evidence of
(DiCarlantonio's) guilt, any error was harmless." Pet. App. A8. The
evidence in the record fully supported this determination and, in any
event, that fact-specific ruling does not warrant further review. /6/
3. Petitioners contend (89-171 Pet. 13-17; 89-5641 Pet. 7-10) that
although their offenses were committed before November 1, 1987, the
effective date of the current sentencing guidelines, they were
entitled to be sentenced under the guidelines. Petitioners maintain
that their second trial, including the sentencing, occured after
November 1, 1987; that nothing in the governing statute or guidelines
prohibits application of the guidelines to sentences imposed after
November 1, 1987, for conduct occurring before that date; and that
there is no constitutional barrier to applying the guidelines
retroactively, because to do so would not increase petitioners'
punishment.
Petitioners' claim is contrary to the explicit terms of the
governing statute. The sentencing guidelines became effective on
November 1, 1987. Sentencing Reform Amendments Act of 1985, Pub. L.
No. 99-217, Section 4, 99 Stat. 1728 (amending the Sentencing Reform
Act of 1984, Pub. L. No. 98-473, Section 235, 98 Stat. 2031). On
December 7, 1987, as part of the Sentencing Act of 1987, Congress
specified that the sentencing guideline provisions "shall apply only
to offenses committed after the taking effect of" the Sentencing
Reform Act of 1984. Pub. L. No. 100-182, Section 2(a), 101 Stat.
1266. In light of that specific statute, petitioners were not
entitled to have their sentences evaluated under sentencing guidelines
that took effect after their crimes were committed. /7/
CONCLUSION
The petitions for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
EDWARD S.G. DENNIS, JR.
Assistant Attorney General
MERVYN HAMBURG
Attorney
OCTOBER 1989
/1/ "Pet. App." refers to the appendix to the petition in No.
89-171.
/2/ With respect to the substantive count, the court of appeals
concluded that petitioners' objection to the testimony regarding the
interstate character of the FBI was moot. Pet. App. A5 n.2.
/3/ None of the decisions relied on by petitioners (see 89-171 Pet.
4-7; 89-5461 Pet. 4-7) involved a claim that a conspiracy charge was
constructively amended by proof relating only to a jurisdictional
element of a substantive charge and concerning matters not known or
contemplated by defendants at the time of their illegal agreement.
/4/ DiCarlantonio bases his Sixth Amendment claim on four
statements by Prayso: (1) his statement to the FBI, "what are you
doing here?" (89-171 Pet. 8); (2) his description of a meeting
attended by Jack, Glaub, and DiCarlantonio (ibid.); (3) his
description of the payoff in DiCarlantonio's office (id. at 8-9); and
(4) his explanation for having $15,000 in his socks (id. at 9-10). As
the government explained in its court of appeals brief (at 26-31),
DiCarlantonio objected only to the first and fourth statements.
Neither of those statements was hearsay; thus both would have been
fully admissible against DiCarlantonio even if he had made a
Confrontation Clause objection to their admission against him. The
first statement was not an assertion at all, and the fourth was not
introduced for its truth, but was introduced merely to show that it
was made, so that it could later be shown to be false. See Fed. R.
Evid. 801(a) and (c); Anderson v. United States, 417 U.S. 211, 220
(1974). In any event, neither the first nor the fourth statement
incriminated petitioner.
/5/ DiCarlantonio apparently recognizes that his claim must be
evaluated under a "plain error" standard. See 89-171 Pet. 13.
/6/ It is well established that Bruton violations are subject to
harmless error analysis. See Schneble v. Florida, 405 U.S. 427, 430
(1972); Harrington v. California, 395 U.S. 250, 254 (1969).
/7/ See Gallardo v. Quinlan, 874 F.2d 186, 188 (3d Cir. 1989);
United States v. Watson, 868 F.2d 157, 158 (5th Cir. 1989); United
States v. Stewart, 865 F.2d 115, 117-118 (7th Cir. 1988); United
States v. Argitakos, 862 F.2d 423, 424-425 (2d Cir. 1988); United
States v. Burgess, 858 F.2d 1512, 1513-1514 (11th Cir. 1988); United
States v. Rewald, 835 F.2d 215, 216 (9th Cir. 1987). In United States
v. Stewart, supra, the Seventh Circuit also pointed out that both the
Senate Report accompanying the Sentencing Reform Act of 1984 and the
general savings provision of 1 U.S.C. 109 further support the
conclusion that the new sentencing statute does not apply to conduct
committed before its effective date. 865 F.2d at 116, 118.
Petitioners assert (89-171 Pet. 17; 89-5641 Pet. 10), without
elaboration, that failure to apply the sentencing guidelines in their
cases would violate due process and the ex post facto prohibition. To
the extent that petitioners are suggesting that, between November 1,
1987, the effective date of the sentencing guidelines, and December 7,
1987, the effective date of the Setencing Act of 1987, they had a
right to be sentenced under the new sentencing guidelines, and that
their constitutional claims must be judged accordingly, they misread
the statute that was in effect before the December 7 clarification.
See United States v. Stewart, supra.